Kansas: Private discrimination against gays, lesbians already legal in most of state

Lawrence  Kansas has attracted an onslaught of national criticism over a proposed bill that media often have summarized as allowing discrimination against gays.

Lost in the fray has been the status quo: Kansans don’t need this law to legally discriminate against people based on their sexual orientation, legal experts say.

With few exceptions — namely, Lawrence — they already can.

“There’s nothing in current law in Kansas that prohibits individuals from discriminating against each other on the basis of sexual orientation,” said Washburn University School of Law professor Bill Rich, whose area of expertise is constitutional law. Likewise, he said, federal law does not prohibit private discrimination based on sexual orientation either.

Most states have non-discrimination statutes, Rich said. A number of those include sexual orientation as a protected category, but Kansas’ is not among them.

The Kansas Act Against Discrimination — which addresses employment relations, public accommodations and housing — prohibits discrimination against individuals because of their race, religion, color, sex, disability, national origin, ancestry and familial status.

The act does not list sexual orientation as a protected class. So, law experts say, gays who believe someone — such as a business owner or employer — has discriminated against them have no legal recourse.

“When you get out to rural communities or many other cities in this state, unless they’ve adopted a discrimination policy similar to the one in Lawrence, there are no protections,” said Lawrence attorney David Brown, who is teaching a LGBTQ law seminar this semester at Kansas University and has been practicing non-traditional family law more than 20 years.

In Lawrence, discriminating against someone based on sexual orientation is illegal, although formal complaints are rare.

In the early 1990s Lawrence was the first city in the state to add sexual orientation to the list of protected classes in its human relations ordinance, alongside the usual classes such as religion, ancestry and age.

Lawrence’s ordinance exempts religious organizations but applies to individuals, such as a private business owner who wants to refuse service to someone, city attorney Toni Wheeler said.

People who think they have been discriminated against because of sexual orientation can file a complaint, which the city’s Human Relations Division investigates, Wheeler said. If conciliation can’t solve the matter and investigators find there’s probable cause to believe an ordinance violation has occurred, the next step is a hearing before members of the Human Relations Commission, which can order remedies.

Since 1995, the city has had nine cases alleging discrimination based on sexual orientation, Wheeler said.

Brown said he believes many more people encounter discrimination than file formal complaints.

In most places there’s nothing they could do anyway, Brown said. Even in Lawrence, a formal complaint can be time consuming or intimidating.

“People like attention usually but not for this kind of problem,” Brown said.

It appears the bill that sparked protests at the state capitol and ridicule in national media will not move forward.

The House approved House Bill 2453 this month, but Senate leaders said the bill is dead in that chamber. Instead, committee hearings are expected to further discuss the general issue of religious freedoms.

Supporters have stressed that the bill, titled “an act concerning religious freedoms with respect to marriage,” is preemptive in nature. They say it’s needed in case a federal court strikes down Kansas' constitutional ban on same-sex marriage, as has happened in other states.

The bill proposes making it illegal for government entities to require individuals or religious groups to provide accommodations contrary to their religious beliefs regarding sex or gender. Specific examples include providing services, facilities, counseling, adoption or employment benefits related to any “marriage, domestic partnership, civil union or similar arrangement.”

Even though, in most of the state, such a measure would not change the status quo when it comes to discrimination based on sexual orientation, law scholars say potential ramifications of such a measure should be taken seriously.

Brown said, for example, people could use it to discriminate against married couples that aren’t same-sex, perhaps couples who follow different religions.

“It’s an extremely broad and scary piece of legislation,” Brown said. “There are all sorts of ways you can twist that around.”